7-year-old Bronx Boy Interrogated for 10 Hours

Per ABC News, Wilson Reyes, a 7-year-old Bronx boy, made national headlines this morning.  Frances Menzes, the boy’s mother, alleges that the NYPD detained Wilson on Dec. 4 near his school, handcuffs and all, held him for four hours there, and then transported him to a police precinct for six more hours of questioning.Toddler (Woodnick)

His terrible offense? According to ‘published reports,’ Wilson struck a 9-year-old who also attends his school and stole $5 from the boy.  The New York Post reports that the city dropped the charges a few weeks later, prompting Menzes to threaten a substantial lawsuit (to the tune of $250 million) for the mistreatment of her son.

It is hard to imagine how the City of New York will justify having its officers detaining a 7-year-old for ten hours of interrogation, but any light that they might shed on the situation will have to wait – ABC News did not receive a comment.

Admittedly, the job of a police officer is a difficult one, and robbery is certainly not a victimless crime deserving no punishment.  This case, however, illustrates the unique challenges which have developed in recent years as legislatures, courts, and citizens struggle with deciding how to deal with juvenile offenders.

Handling a juvenile offense is a delicate task which requires specialized expertise for everyone involved.  Police officers, investigators, school administrators, and other personnel must balance their concerns for the safety of other children with the real possibility that reacting too harshly could cause irreparable damage to the juvenile suspect.  Juveniles are also much less likely to understand their rights, substituting fear and confusion for the jaded demeanor of some accused adults.  Furthermore, the rules regarding when a minor can be tried as an adult vary by jurisdiction, and a younger child may receive greater protections against unreasonable intrusions and punishments than an older one.

A criminal defense attorney in Phoenix with years of experience defending adults may lack knowledge about juvenile offenders and unique concerns about their rights to privacy and mitigated sentencing.  Conversely, a juvenile defense lawyer in Scottsdale may have become so specialized in defending older teenArizona (Woodnick)agers against drug charges that a robbery charge against a 7-year-old, such as that filed against Wilson Reyes, would present a plethora of unforeseen obstacles.

A criminal conviction for a juvenile could negatively affect their entire life – a felony record which is not sealed once adulthood is reached could prevent the accused from financing a car, from being hired by employers, and could even damage their ability to provide care for their own children.  Hopefully, your child is never interrogated by police for ten hours, but every case can have an extreme impact on yours and your child’s life.

Teacher Marries Student to Invoke Spousal Privilege

In a shining example of legally permissible, yet terrible decisions, a 42-year-old former teacher married her 17-year-old student in an attempt to short-circuit her criminal prosecution.

Associated Press reports that the teacher divorced her husband and married the student six days later (with his mother’s signed permission because he is a minor).  The teacher was arrested in 2009 and charged with statutory rape, sexual offense with a student, and taking indecent liberties with a student under North Carolina state law.

School Closed (woodnick)

Arizona sees more than its fair share of teacher misconduct allegations – the nightly news often scoops stories of a Deer Valley coach or an Awhatukee substitute teacher becoming inappropriately involved with minors (these being illustrative hypotheticals and not comments on those areas, of course).  What is unique about the North Carolina case, however, is that the former teacher eventually married her student and pleaded guilty to “resisting a public officer,” instead of the felony sex charges.

Your first thought may be that the teacher and student were not married in 2009, so why did the prosecutor drop the felony charges?  Common law evidence rules, since adopted in statute by most states, typically include a so-called “spousal privilege” which prevents the state from compelling someone to testify against their spouse in a criminal case.

The reasoning for the spousal privilege varies, but it is centered primarily on protecting marriages from the tension which would come from one spouse being forced to testify against the other.  The privilege is held by the accused spouse, but it can be invoked by either: an unwilling spouse can refuse to testify by invoking the privilege, and the accused can block a willing spouse from testifying against them by doing the same.

In cases of sexual misconduct, it is often nearly impossible to find physical evidence that any wrongdoing has occurred.  The testimony of the victim is critically important to the success of trying these kinds of cases, so much so that the prosecutor in North Carolina allowed the teacher to plea down to a misdemeanor.

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Now, before you start to believe that you can just marry the key witness in your case to stop them from testifying: don’t.  This case is a classic example of the oft-forgotten gap between what you “can” do and what you “should” do.  Clients who watch too many crime shows on television and attorneys whose zealous representation carries them to the fringes of the rules of professional conduct may be tempted to try every angle, file every possible motion, and any other imaginable tactic to secure a victory in court.

There is a difference, however, between a “victory” and a favorable outcome, which requires finesse and a careful analysis of the potential benefits and detriments of legal action.  In the case of the teacher-turned-molester-turned-cradle robber, any chance that she might have had at absolution and redemption is shattered.  With her name plastered all over the Internet and national news, any chance that she may have had at a normal life is probably gone.  At the age of 42, she could have had many working years ahead of her, but she will now carry a bizarre reputation and is highly unlikely to teach again.

Mobile Fingerprint Scanners and Temporary Detention

Most of us have seen a few “whodunit?” police dramas, in which an eccentric team of detectives investigate the scene of a crime, gather all sorts of cinematically enhanced “evidence,” and always solve mysteries with entirely unrealistic swiftness and certainty.

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In those shows, as is often the case in the real world of law enforcement, one of the first and most telling clues is the fingerprint.  Finding intact fingerprints at the scene can help investigators identify who was present, what they touched, and various other inductive inferences which can lead to a reconstruction of the events in question.

Far more frequently, however, fingerprints are used for the mundane purpose of identifying suspects who cannot produce other forms of identification.  Those fingerprints are also cross-referenced with city, state, and sometimes national databases to check for past crimes, outstanding arrest warrants, and other information necessary for police to identify and clear suspects before moving forward with either an arrest or release.

In Mesa, city officials recently equipped police with mobile fingerprint scanning devices which allow officers to check fingerprints on the street, rather than having to drag the suspect to a booking facility just to learn their identity and whether they have any outstanding warrants, reports the East Valley Tribune.

The mobile devices automatically connect to the Arizona Automated Fingerprint Identification System, allowing officers to quickly surmise whether a suspicious individual lied about their identity, produced false documentation, or is wanted for a crime or for violating a court order.

Arizona (Woodnick)In Arizona, A.R.S. § 13-3905 permits police officers to seek court orders to collect “evidence of identifying physical characteristics” – including fingerprints – if the officer can support a reasonable belief that a felony has been committed, the evidence “may contribute” to the identification of the individual who committed the felony, and the officer could not otherwise obtain the evidence .

This statute has been challenged numerous times on the basis of the Fourth Amendment’s guarantee that citizens shall be free from unreasonable searches and seizures, and it has proven legally sturdy to this point.  Per case law relating to § 13-3905, a suspect can be temporarily detained by an investigating officer for three hours (or perhaps even longer) in order that the officer can collect identifying physical evidence.  The officer need only demonstrate reasonable cause – a lower standard than the infamous “probable cause” needed for most searches of private property – in order to gain authority for a so-called “prearrest detention” to collect identifying evidence.

Because mobile fingerprinting devices have proven useful in the East Valley, it seems likely that more agencies will begin using them in the near future.  What remains unclear is how those devices will fit into existing statutory schemes which are designed to facilitate police investigations while simultaneously safeguarding the privacy rights of individuals who are detained.

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If you are in a public place and a police officer wishes to question you as a bystander, you have the right to refuse – the U.S. Constitution protects your right to remain silent to avoid incriminating yourself.  Doing so may make the officer suspicious, however, which may prompt temporary detention for fingerprinting or other “prearrest” procedures.  If you are so detained, you have the right to speak to an attorney.  If the officer detained you for dubious reasons and cannot meet the “reasonable cause” requirement with supporting facts before a judge, then any evidence collected from you might be invalid and inadmissible if you are later charged with a crime.

Every detail of your detention might be critical to your defense.  Remember to demand to speak to an attorney and insist upon exercising your right to remain silent.

CPS Under Scrutiny for Placement in Colorado City

Child Protective Services (CPS), the state agency responsible for protecting the safety and welfare of vulnerable children, is one of the most embattled sectors of our local government.  Understaffed and underfunded, CPS struggles with the ever-growing task of investigating child abuse, finding homes for children who need them, and other related tasks.

woodnickArizonans for Children, Inc. reports that emergency shelters regularly harbor 1,300 children for three weeks or more while they await placement in homes.  The need for qualified foster parents exceeds availability, so CPS, although careful to select safe places to send children who need care, sometimes makes controversial decisions.

azcentral.com reports that Mohave County Supervisor Buster Johnson asked Gov. Jan Brewer and Attorney General Tom Horne to help return a child to Lake Havasu City, where his mother currently resides.  The child was separated from his two brothers, who are currently in Prescott, and was himself placed in the care of Dan Wayman, a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) in Colorado City.

The FLDS Church, situated in numerous enclaves along the Arizona-Utah border, has garnered national attention over the course of many years for its policies, which include polygamy.  Supervisor Johnson believes that CPS should not permit foster care or adoptions in Colorado City, where he says arranged marriages and family-run businesses lead to spousal and child abuse and underage labor.

Meanwhile, Dan Wayman has one adopted son and is licensed to care for up to five children.  According to Johnson, CPS is considering placing the child’s brothers in the same home in accordance with an overarching policy to keep families together where possible.

Children can be placed under CPS supervision for a many reasons, including being abandoned or being removed from parental custody after becoming victims of abuse.  CPS attempts to place such children with relatives if possible, and subjects potential foster and adoptive parents to a licensing procedure before approving their application to care for children.

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Although CPS investigates the mental health, history, and lifestyle of prospective caretakers, there are simply too many variables to consider – and too great a need for more open homes – to guarantee that every foster parent is qualified.

Most caretakers are highly qualified and perform their duties admirably, but sometimes children are moved from one dangerous situation to another when they are removed from their homes and placed in foster care.  In addition, mistakes can sometimes lead to children being taken away from loving parents whose mistakes do not warrant such drastic measures.  In those scenarios, placing a child in a potentially harmful foster care situation would be a tragedy, particularly if the allegations leading to the child’s removal turn out to be false.

The laws governing Child Protective Services and the scenarios in which their duties are triggered can be complex.  Criminal, family, and other unique areas of law often intersect in CPS-related cases, creating a mired field of complicated legal issues.

Sex Offender Registration and Real Estate

In a November decision, the Arizona Court of Appeals held that sellers and agents have no duty to report the presence of nearby sex offenders when offering a home for sale – a decision with meaning unrelated to real estate.

The case, Lerner v. BMD Realty, Inc., began when the Lerners purchased a Scottsdale home and later learned that a registered sex offender lived next door.  The Lerners claimed that the previous owners told them that they wanted to live closer to friends when they were actually selling the home because of the close proximity of a registered sex offender.

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Under A.R.S. § 32-2156, no legal action can be taken against a seller for failure to disclose whether a death or felony has occurred in the home, whether anyone with a syndrome or disease not known to be communicable by common occupancy of real estate lived in the home, or whether the home is located in the vicinity of a sex offender.

The knee-jerk reaction to § 32-2156 may be surprise or outrage, particularly because the term “sex offender” conjures media-propagated images of morally bankrupt, sub-human individuals prowling the streets.  Why would the legislature immunize sellers for failing to disclose information which may be important to buyers?

The reasons, of course, are numerous.  Allowing lawsuits for failure to disclose whether a death or felony occurred in the home would force sellers to investigate events which may have happened years – or even decades – prior to their ownership.  Requiring sellers to disclose whether anyone with HIV or other non-communicable (by real estate) illnesses would invade the privacy of the home’s past residents and could result in a canceled sale for dubious reasons.

As for the provision for sex offenders in the vicinity, the legislature clearly wished to place the responsibility of finding that information on the buyer.  The registry is readily available to everyone, and buyers can choose how a positive result on the registry website affects their purchase decision.  Requiring sellers to disclose that information would likely chill real estate sales and adversely affect home prices, at minimum.

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Because “sex offenders” have been so thoroughly and collectively vilified, requiring sellers to disclose their proximity would probably result in many canceled sales without any further investigation.  If lawsuits against sellers were permitted for failure to disclose, courts would be forced into the difficult – if not impossible – task of tracking sex offenders’ locations at the time of sale to decide whether a seller discharged their obligation.

Perhaps more importantly, registered sex offender status does not automatically equate an individual to Law and Order: Special Victims Unit levels of dangerous criminal behavior.  The Arizona Sex Offender Information website contains a list of around 14,500 people who are legally required to register their presence in the state due to past convictions.  Offenses requiring registration include the relatively minor offense of indecent exposure all the way up to the major crimes of sexual assault or sex trafficking.  Even non-sexual crimes can result in mandatory registration if the judge determines that the offense was “sexually motivated.”

Although sex offender registration requirements are designed to inform the public and to promote safety, people who made mistakes, were convicted, served their sentence, and have remodeled themselves as law-abiding citizens have earned the right to go on living.  Requiring sellers to disclose nearby sex offenders could, in the worst-case scenario, result in vandalism, violence, or retaliation, to say nothing of the difficulty of trying to live a normal life amidst the paranoia of nosy neighbors.

Anyone who wishes to buy a home should be as well-informed about their purchase as possible, but the legislature understood the need to balance the obligations of the seller with the responsibilities of the buyer.  According to the Court of Appeals of Arizona, the Lerners should have used the 14-day inspection period to investigate the details of their purchase, including whether any registered sex offenders lived nearby – a simple search of the Arizona Sex Offender Information website, located at http://www.azdps.gov/Services/Sex_Offender/, would likely have revealed the pertinent information.

This holding is consistent with the so-called “buyer beware” doctrine which permeates commercial and real estate transactions in the U.S.  Because sex offender registries are readily available to everyone, it is up to the buyer to check them before buying a home.

All is not lost for the Lerners, however, because the court left open the possibility that they could recover against the sellers for fraud if they can prove that they lied about their reasons for moving.

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In any case, the Lerner v. BMD Realty, Inc. decision should give pause to anyone involved in a real estate transaction.  If you are buying or selling a home, it is important to understand your duties and obligations and how they might affect negotiations.

If you are selling a home, it may be advantageous to disclose certain facts even if you are not legally obligated to do so – if your well-liked 19-year-old neighbor is a registered sex offender because he had consensual sex with his 17-year-old girlfriend, explaining the situation to a prospective buyer will probably result in a more favorable outcome than attempting to avoid the subject.

If you are buying, on the other hand, then understanding the registry and what a positive search result means could prevent you from placing your family in danger.  Conversely, carefully examining the registry results and making an informed decision might prevent you from rejecting your dream home because of unreasonable fears.